Supreme Court could limit Obama’s recess appointments

Published: Monday, Jan. 13, 2014 11:38 p.m. CST

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WASHINGTON – Just back from their own long break, Supreme Court justices set out Monday to resolve a politically charged fight over when the Senate’s absence gives the president the power to make temporary appointments to high-level positions without senators’ approval.

The legal battle is the outgrowth of partisan rancor over presidential appointees that has characterized Washington over the past 20 years, and especially since President Barack Obama took office in 2009.

Recess appointments have divided Democrats and Republicans, with views changing depending on which party holds the White House. But during more than 90 minutes of arguments Monday, the Obama administration was hard pressed to find support for its stand in favor of recess appointments from justices named by Republicans and Democrats alike – including Obama.

Justice Elena Kagan, an Obama nominee, seized on the political dispute to make the point to Solicitor General Donald Verrilli Jr. that “congressional intransigence” to Obama nominees may not be enough to win the court fight.

Kagan, Verrilli’s predecessor as Obama’s top Supreme Court lawyer, suggested that it “is the Senate’s role to determine whether they’re in recess.”

The court is writing on a blank slate as it considers for the first time the Constitution’s recess appointments clause. That clause allows the president to fill vacancies temporarily, but only when the Senate is in recess.

The constitutional issue may be new to the court, but two justices lived through the political tussle over nominations. Both Chief Justice John Roberts and Kagan were nominated to the federal appeals court in Washington, but saw their nominations blocked in the Senate. Roberts eventually won confirmation, but Kagan did not. And one of the lawyers involved in Monday’s case withdrew his nomination to the same court.

The Senate has “an absolute right not to confirm nominees that the President submits,” Roberts said.

The administration was “latching onto” the constitutional provision to combat the Senate’s refusal to act, even though it was written to deal with an era when horseback was the fastest mode of transportation and Congress was absent from Washington for long periods, Roberts said.

Even Justice Ruth Bader Ginsburg, perhaps Verrilli’s most sympathetic questioner, said at one point, “I think to be candid, the Senate is always available. They can be called back on very short notice.”

Monday’s case, the first argument at the court in more than a month, is a dispute over Obama’s appointments to the National Labor Relations Board in January 2012. Republicans and employers who objected to NLRB decisions made by those Obama appointees say the Senate was not in recess when Obama acted, and so any decisions made by the board were illegitimate.

There are three questions before the court — whether recess appointments can be made only during the once-a-year break between sessions of Congress, whether the vacancy must occur while the Senate is away in order to be filled during the same break and whether brief, pro forma sessions of the Senate, held every few days to break up a longer Senate hiatus, can prevent the president from making recess appointments.

The latter question offers the court a narrower way to rule on recess appointments.

Verrilli seemed to signal he would rather lose on that question than the first two. But under any circumstance he said, “You really are writing the recess appointments power out of the Constitution,” he said.

The importance of recess appointments has dimmed in recent months, since majority Democrats changed the Senate’s rules to make it harder for the minority party to block the president’s nominees to federal agencies and the courts.

But the issue could once again be front and center when the White House and Senate are controlled by different parties.

Senate Republicans’ refusal to allow votes for nominees to the NLRB and the new Consumer Financial Protection Bureau led Obama to make the temporary, or recess, appointments in January 2012.

Three federal appeals courts have said Obama overstepped his authority because the Senate was not in recess when he acted. The Supreme Court case involves a dispute between a Washington state bottling company and a local Teamsters union in which the NLRB sided with the union. The U.S. Circuit Court of Appeals for the District of Columbia overturned the board’s ruling, and hundreds more NLRB rulings could be voided if the Supreme Court upholds the appeals court decision.

Washington lawyer Miguel Estrada represented Senate Republicans on Monday. Estrada withdrew his appeals court nomination in 2003, after Senate Democrats used the rules that recently were changed to repeatedly prevent a vote on the Senate floor.

With seemingly no trace of irony in his voice, Estrada said the Constitution erected a political structure that requires the branches of government to cooperate. “You have to act jointly. You have to play nice,” he said. “And in a country of 300 million people, it’s always possible for the president to come up with another nominee who is even more qualified and acceptable to the Senate.”